Chair Whitehouse, Ranking Member Kennedy, and members of the subcommittee, thank you for the opportunity to submit this statement. The Project On Government Oversight (POGO) is pleased to endorse the Supreme Court Ethics, Recusal, and Transparency Act, S. 359. For many years, we have advocated for sensible ethics reform at the United States Supreme Court, which is the only court in the country without its own ethics code.
POGO is a nonpartisan independent watchdog that investigates and exposes waste, corruption, abuse of power, and when the government fails to serve the public or silences those who report wrongdoing. We champion reforms to achieve a more effective, ethical, and accountable federal government that safeguards constitutional principles.
We know that no government official — including a Supreme Court justice — is incorruptible. While a flurry of recent revelations about the conduct of Justice Clarence Thomas has brought new attention to this long-standing problem, no justice has been immune from questions about their ethical conduct.1 It is worth underscoring this important point: A demand for ethical constraints is not an attack on the Court or any single justice. It is simply common sense. Our nation’s most powerful court should not be its least accountable.
This bill provides what is long overdue: a specific code of conduct for the Court; disclosure obligations on par with those demanded of other high-level government offices; and clearer disqualification obligations. It also closes loopholes that permit justices to avoid accountability for wrongdoing by virtue of their position on the highest court in the land.
We particularly applaud the bill’s provisions to strengthen recusal decision-making at all levels of the federal judiciary. Under the current system, a judge or justice facing a motion to recuse based on a statutory disqualification is themself responsible for determining whether they must step aside.2 In a system predicated on the principle that nobody should be a judge in their own case, this is untenable. The Act would improve this situation by clarifying conflicts that require recusal and by creating mechanisms for a review panel of other judges to weigh in on the necessity of recusal.
We have long argued that recusal reforms are particularly needed at the Supreme Court. As the justices’ April 2023 “Statement on Ethics Principles and Practices” indicates, and as the attached article explains, the justices have collectively distorted principles of fairness to justify participating in cases despite conflicts.3 The Supreme Court’s current practice, which undervalues recusal in favor of maintaining a full bench, is the justices’ own invention, unmoored from their statutory ethical responsibilities and from common law.
Against this backdrop, it is clear that congressional action is necessary. As POGO has testified previously, “No ethics regime should be based on the mere faith that those entrusted with enormous power will simply ‘do the right thing.’ Of course, we hope that public servants will conduct themselves ethically, whether in their official capacity or in the private sphere. But trust alone is not a guardrail for our democracy.”4
The Supreme Court Ethics, Recusal, and Transparency Act is a reasonable, measured, and necessary step to protect the Court’s actual and perceived integrity and independence.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.